Sunday, September 16, 2007

Double jeopardy on the rocks once more

Only the politicians bent on a quick sound byte and the Crown Office are sticking to the 'change the law' idea in the World's End trial collapse ... avoid the problem of a failing Crown Office by putting the blame on the law ... terrible tactics, one would have expected from the last lot in Government ? .. but here we are again ....

The Sunday Herald reports :

Justice in jeopardy

By Neil Mackay

WHEN THE case against serial killer Angus Sinclair collapsed on Monday, the Scottish legal and political establishment understandably suffered something of a minor nervous breakdown.

The main symptom was a series of calls for the abolition of the principle of double jeopardy - the legal right not to be tried twice for the same crime. Today, Scotland's brightest legal minds say that to throw out the double jeopardy concept would be a grave error that would lead to the politicisation of the prosecution system.

The Sinclair trial was, without doubt, a disaster. Angus Sinclair, 62, had been put on trial for the World's End double killings, perhaps Scotland's most notorious unsolved murder case. Thirty years ago, two teenagers, Christine Eadie and Helen Scott, went missing after being last seen alive in the World's End pub in Edinburgh. In 2005, Sinclair was charged with the murders; at that time he was serving a life sentence for killing a 17-year-old girl, Mary Gallagher, in 1978. He also had a conviction for sexually assaulting and fatally strangling an eight-year-old girl in 1961.

On top of these offences, there was a history of sexual attacks on children. Sinclair is also the chief suspect in the unsolved killings of at least four other women.

On Monday, Lord Clarke, the judge in the World's End trial, threw the case out of court, saying there was insufficient evidence to proceed.

Sinclair had blamed his dead brother-in-law Gordon Hamilton, another sexual predator, for the crimes. There was "compelling evidence", according to other forensic scientists brought before the court, that semen from Hamilton as well as Sinclair was found on both girls.

To most people, that would imply that the pair acted together in killing the girls. However, in the eyes of the law, all it truly meant was that there was a 50% chance that Sinclair, still behind bars and serving life, hadn't killed the girls.

First minister Alex Salmond said on Thursday that his ministers were considering scrapping the double jeopardy rule. Labour's Cathy Jamieson also spoke of a "growing mood" favouring the abolition of the rule. Salmond's comments came as the lord advocate, Elish Angiolini, wrung her hands in front of parliament over the Sinclair case, saying there was in fact sufficient evidence for the case to have proceeded. In other words, the judge was wrong.

Angiolini also defended the prosecution, claiming that key DNA evidence showing that body fluids from Sinclair were found on underwear used as a ligature was not presented to the court because other evidence had already been laid out that showed he'd engaged in sex with both girls.

Angiolini's comments have shifted the spotlight on to the judge, Lord Clarke. She claimed that, even if advocate-depute Alan Mackay had led the ligature evidence, "given the way in which the judge approached the case, it is unlikely to have persuaded him to repel the defence submission to throw the case out".

For politicians wishing to put the abolition of the double jeopardy rule on the table, it's crucial that a judge rather than the prosecution be at fault. Robert Black, professor emeritus of Scots Law at Edinburgh University, said: "If a judge is to blame, the argument for ending double jeopardy becomes much more convincing as one side, the prosecution, can say it didn't have a fair crack of the whip. If the prosecution has been wrongly prejudiced, you can argue that the Crown should be allowed to try again as the failure was not their fault."

Black opposes the abolition of the principle. "I have a fear of the Crown coming under pressure from police officers to run with a case again in order to get the right' verdict." What troubles Black is that the Crown would be able to appeal the verdict of a jury if it was one that the prosecutors didn't like.

Black says he does not oppose a system which would let the Crown appeal a judge's ruling rather than a jury's verdict. Such a system would apply to the circumstances of the World's End case. If this type of scenario were given the go-ahead, however, the appeal should be quick, and follow within days of a judge's disputed ruling so that the original jury could be retained if the Crown won its appeal. If the Crown failed, the case would end. Black calls this "the sensible middle ground".

If politicians were to end double jeopardy, Black says the system would need "the strictest of safeguards". He would want to see an independent gatekeeper, such as a retired judge, hired to decide which cases were eligible for retrial. A second trial should be considered only if new evidence came to light.

Black also said that if the state took a person to trial a second time and failed to convict, the Crown should pay compensation to the individual who was put through the ordeal of two trials. He worries that ending double jeopardy would increasingly politicise the legal system, with public opinion forcing politicians and the Crown to order retrials in cases where the electorate, and the tabloid media, were outraged.

He added that there was already an element of kow-towing among the legal establishment to the position of the lord advocate. In the midst of a debate on the future of a fundamental legal and human right, this could be a worrying trend. "There's a tendency," Black said, "to say that if the lord advocate says so, then it must be so. The power of the position quashes debate. The system needs a safeguard against such deference."

Black says he "found Judge Clarke's reasoning more satisfactory than the lord advocate's". He went on: "If the Crown proves a crime was committed by one of two men, that's not good enough. A 50% chance isn't good enough to convict someone. The judge was right on that point." He also raised the question why Angiolini had not made a lord advocate's reference on the ruling. This allows a higher court to rule on whether the judge's decision was correct or not. Such a move would not prevent the accused walking free, but it would clarify the law.

"In the vast majority of cases the Crown should have one go and that's it," Black said. He feared that those who wanted to abolish double jeopardy were doing so because they had a "disturbing agenda ... and wished to look tough in front of the public, particularly as it meets with the approval of the tabloids". As the doctrine has been abolished in England, there are those in Scotland, he says, who believe "Well, why not here?"

Former lord advocate Lord Fraser of Carmyllie also opposed the abolition of double jeopardy. "I'm in favour of certainty in the law - the ability to say that's it, it's over' - and that is why I am reluctant to see the removal of the rule," he said. He too, however, was not opposed to giving the Crown the right to speedily appeal a judge's ruling that ended a case. He pointed out that this balanced with the Crown's right to appeal a ridiculously lenient sentence.

He also warned that ending double jeopardy "could lead to the politicisation of prosecutions".

"If a case led to public outrage, that could see the lord advocate placed under pressure to try again whether or not he or she thinks it's necessary," he said. In a hypothetical case, with MSPs and the public up in arms over an acquittal, Fraser warned of the "potential for an attack on the independence and objectivity of the lord advocate ... they could be shanghaied into a new trial."

Lord Fraser described Sinclair as a "very bad man" and said it was "outrageous" how he wangled his way through the system, but he also praised the judge as "very capable".

As the UK is not a signatory to the seventh protocol in article four of the European Convention of Human Rights, which specifically prohibits trying someone twice for the same offence, Scotland can dump double jeopardy, but Lord Fraser said this would "flout an ancient principle".

"It is right that there should be a right of appeal, but when the final decision is arrived at, that should be that," he said. "When a jury finds you innocent, then you are innocent. It would be a grave danger to tamper with that."

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